Terms and Conditions

 1. 
Service Agreements: This Schedule A, General Terms and Conditions (“General Terms and Conditions”), contains the general terms and conditions governing the relationship between the parties as part of any related Service Agreement.
 2.  Term: The term of each Service Agreement shall begin as of the Effective Date of such Service Agreement and continue for the term specified on such Service Agreement. The term of each Service Agreement shall automatically extend for the Renewal Term specified on such Service Agreement, unless such Service Agreement is terminated by either party by written notice of termination at least thirty (30) days prior to the expiration of such term then in effect, or until otherwise terminated pursuant to the provisions of such Service Agreement or these General Terms and Conditions.

 3.  Services: During the term of each Service Agreement, HyperWiser shall provide Customer the Services described on such Service Agreement. The Services shall be provided by HyperWiser in accordance with the timeline, if any, set forth on such Service Agreement. Customer shall satisfy all of Customer’s obligations, if any, set forth on such Service Agreement.
Except as otherwise provided on a Service Agreement, Customer shall be responsible for the application, operation, maintenance and support of its application systems, and this includes Databases, Middleware applications and all other applications not supported by HyperWiser. To the extent required by HyperWiser, Customer shall provide HyperWiser with procedures for the back-up of the databases and application servers.
Except as otherwise provided on a Service Agreement, HyperWiser or its licensors own the Services and Customer shall have no proprietary rights to the Services or any software supplied by HyperWiser, processes, know-how, source code, source documentation, inventions, ideas and the like included within the Services, or in intellectual property contained therein, or any documentation related to such Services. Customer shall have a personal, non-transferable and non-exclusive license to use any software and documentation provided by HyperWiser solely in connection with the Services. Customer agrees not to duplicate such software or documentation, or any part thereof, except that Customer may retain one copy for the purpose of backup. Customer agrees not to assign, sublicense, transfer, lease, rent or share any license granted to Customer hereunder, and not to reverse assemble, engineer, or decompile such software, or any part thereof, or otherwise misappropriate any of the intellectual property of HyperWiser Inc. To the extent that any software is included in or used by HyperWiser in performance of required Services, such software may be subject to a separate license agreement, if required by Hyper Wiser.
Except as otherwise provided on a Service Agreement, to the extent that HyperWiser or any third party manufacturer specifies any preventative maintenance with respect to the Services, Customer shall be responsible for such maintenance.
From time to time, Customer may request that HyperWiser provide additional or amended Services not covered by an existing Service Agreement, and the parties hereto may, but are not required to, agree to a change order for Services either by amending an existing Service Agreement or by entering into a new Service Agreement. Such change order, if executed, will specify the Services to be provided by Seller and terms for such Services, including, but not limited to, price terms.
 4.  Compensation: Customer shall compensate Seller for the Services in accordance with the terms and payment schedule set forth on each Service Agreement. Customer shall make payments to HyperWiser in accordance with such payment schedule and within thirty (30) days after receipt of an accurate invoice from HyperWiser showing the value of the Services completed. Such invoice shall also itemize any reimbursable expenses. Customer shall also pay any sales, use, value-added, or other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. Late payments shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by applicable law, whichever is lower.
Except as expressly set forth on a Service Agreement, HyperWiser shall be responsible for all expenses incurred by HyperWiser under such Service Agreement. To the extent that the reimbursement of any travel-related expenses is authorized on a Service Agreement, Customer shall reimburse Seller for all reasonable expenses incurred by HyperWiser for travel, lodging and sustenance when HyperWiser is required to perform Services at locations other than HyperWiser’s offices and datacenters.

 5.  Installation: To the extent that any products or materials, are to be installed by HyperWiser in the customer’s infrastructure, HyperWiser shall install such products or materials as specified on a Service Agreement. Installation dates are estimates only. Customer shall be responsible for preparation and maintenance of the install scripts or images.
 6.  Warranties: HyperWiser MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED REGARDING THE FUNCTIONALITY OF HARDWARE OR SOFTWARE, BUT INSTEAD RELIES ON THE WARRANTIES PROVIDED BY THE MANUFACTURER OF EACH PRODUCT. EXCEPT AS EXPRESSLY STATED IN ANY SERVICE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS, HyperWiser DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
HyperWiser hereby warrants that any products or materials to be installed by HyperWiser under any Service Agreement shall be performed or installed by HyperWiser in a workmanlike manner, consistent with generally prevailing industry standards for comparable services, and in compliance with the requirements of such Service Agreement.

 7.  Indemnification: If the Services or any of the products or materials manufactured or created by HyperWiser are proven to infringe a third party’s trademark, patent, copyright or other intellectual property right, or HyperWiser determines that any of the Services or such products or materials shall infringe such rights, or Customer is enjoined from using any of such products or materials, or any part of same, then HyperWiser, at it’s expense and sole option, shall (1) replace such infringing Services, products or materials with non-infringing, equivalent and conforming services, products or materials, (2) modify such infringing Services, products or materials, so such Services, products or materials become non-infringing, but continue to provide the same type and quality of performance and services, or (3) procure the right for Customer to continue using such infringing Services, products or materials.

 8.  Limitation of Liability: IN NO EVENT SHALL HyperWiser BE LIABLE TO CUSTOMER, ANY EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO ANY SERVICE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS EVEN IF HyperWiser HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. HyperWiser’s LIABILITY TO CUSTOMER UNDER ANY SERVICE AGREEMENT AND THESE GENERAL TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO HyperWiser PURSUANT TO SUCH SERVICE AGREEMENT FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS.

 9.  Malicious Events: If a security system for Customer’s network is included within the Services to be provided by HyperWiser, HyperWiser agrees to use commercially reasonable efforts to protect Customer’s network from malicious attack by computer viruses, computer worms and/or computer hackers (collectively, “malicious activities”). However, Customer understands that no security system can guaranty complete protection against malicious activities as such attacks often involve the intentional action by third parties to invade and injure computer systems. Therefore, Customer agrees to hold HyperWiser harmless from any loss, injury or damage to Customer or any hardware, software, and/or computer data of Customer caused by such malicious activities.
 10.  Confidentiality: “Confidential Information” of a party hereto shall be deemed to include all information, materials and data disclosed or supplied by such party (“Disclosing Party”) to other party hereto receiving such information (“Receiving Party”), that Disclosing Party designates to be of a confidential nature. If disclosed in written or other tangible form or electronically, Confidential Information shall be marked by Disclosing Party as “Confidential”. If disclosed orally or visually, Confidential Information shall be identified as such by Disclosing Party at the time of disclosure and designated as “Confidential” in a written memorandum of such disclosure, summarizing the Confidential Information sufficiently for identification, to be delivered by Disclosing Party to Receiving Party within thirty (30) days of such disclosure.
Following information shall not be considered Confidential Information hereunder: (1) information of Disclosing Party that is or becomes generally known within the relevant industry through no wrongful act or omission of Receiving Party or breach by Receiving Party of its obligations under any Service Agreement or these General Terms and Conditions; (2) information which Receiving Party can establish and document by contemporaneous written proof was in the possession of or known by such party prior to its receipt of such information from Disclosing Party, without any obligation of confidentiality to Disclosing Party; (3) information that is rightfully disclosed to Receiving Party by a third party with no obligation of confidentiality to Disclosing Party; and (4) information which is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party, with Receiving Party bearing the burden of proving such independent development.
Confidential Information of Disclosing Party may not be used by Receiving Party for any purpose except in the performance of Receiving Party’s obligations on behalf of Disclosing Party under any Service Agreement and engaging in related discussions with Disclosing Party. Receiving Party shall maintain the confidentiality of all of Disclosing Party’s Confidential Information disclosed to Receiving Party hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in any Service Agreement.
To the extent Receiving Party is required to disclose Confidential Information of Disclosing Party pursuant to any court or regulatory order, Receiving Party shall promptly notify Disclosing Party in writing of the existence, terms and circumstances surrounding such disclosure so that Disclosing Party may seek a protective order or other appropriate remedy from the proper authority. Receiving Party agrees to cooperate with Disclosing Party in seeking such order or remedy. Receiving Party further agrees that if Receiving Party is required to disclose Confidential Information of Disclosing Party, Receiving Party shall furnish only that portion of Confidential Information that is legally required and shall exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment shall be accorded Confidential Information.
Receiving Party shall promptly return to Disclosing Party all correspondence, memoranda, papers, files, records and other tangible materials embodying Disclosing Party’s Confidential Information or from which such information may be derived, including all copies, extracts or other reproductions thereof, when Receiving Party no longer needs such Confidential Information to accomplish the performance of Receiving Party’s obligations on behalf of Disclosing Party under any Service Agreement or when Disclosing Party requests its return, whichever occurs first, or certify to Disclosing Party that all such materials have been destroyed if Disclosing Party requests such destruction.

 11.  Non-Solicitation: During the term of any Service Agreement, and for a period of twelve months (12) months thereafter, Customer agrees not to, directly or indirectly, solicit, recruit or employ any employee of Seller without the prior written consent of HyperWiser.
 12.  Equitable Relief: A breach of Section 10 or Section 11 hereof by a party hereto cannot reasonably or adequately be compensated in damages in an action at law and shall cause irreparable harm and significant injury and damage to the other party hereto. By reason thereof, the aggrieved party hereto shall be entitled, in addition to any other remedies it may have under any Service Agreement or these General Terms and Conditions or otherwise, to seek and obtain immediate preliminary, interim and permanent injunctive or other equitable relief to prevent or curtail any actual or threatened breach of such Sections.
 13.  Reporting Requirements: During the term of each Service Agreement, HyperWiser shall provide Customer with verbal or written reports as described on Schedule B of such agreement.
 14.  Termination: The parties hereto may terminate any Service Agreement, and their respective obligations under such Service Agreement, as follows: (1) by mutual, written consent of the parties hereto; (2) by HyperWiser, if Customer fails to pay any payments under any Service Agreement when due, as contemplated by such Service Agreement; (3) by any party hereto upon sixty (60) days written notice if the other party hereto materially breaches any term of any Service Agreement or these General Terms and Conditions or otherwise fails to satisfy any promise or covenant made herein or in any Service Agreement, and further provided that such party shall fail to cure said breach or failure within such period; (4) by any party hereto upon written notice to the other party hereto if a proceeding is brought by the other party hereto in any court or under supervision of any court-appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency or debt readjustment law, or if any such proceedings are instituted against the other party hereto and it fails to obtain dismissal of such proceeding within sixty (60) days after the same has been instituted; or (5) by Seller, with or without cause, upon sixty (60) days’ written notice of intent to terminate to Customer.

 15.  Upon termination or expiration of any Service Agreement, for whatever reason, each of the parties hereto shall immediately cease using any and all Confidential Information of the other party hereto related to such Service Agreement, unless specifically authorized, in writing by such other party, and shall promptly return to such other party any and all of such information in its possession, and shall not publish or reveal, use or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by such other party. Without limiting the generality of the foregoing, the obligation to promptly return Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information, and all images, compilations, copies, summaries or abstracts of such information, from computer storage, systems and related storage devices, tools and servers.
Termination or expiration of any Service Agreement shall not release any party hereto from any liability which has as of the date of such termination or expiration already accrued to the other party hereto, nor affect in any way the survival of any right, duty or obligation of either party hereto which is expressly stated elsewhere in such Service Agreement or these General Terms and Conditions to survive such termination or expiration hereof.
The provisions of this Section and of Sections entitled Warranties, Indemnification, Limitation of Liability, Confidentiality, Non-solicitation and Equitable Relief shall survive any termination or expiration of any Service Agreement.
 16.  Notices: All notices, demands and communications required or permitted in connection with each Service Agreement shall be in writing and shall be deemed effectively given in all respects upon personal delivery or, if mailed, by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier, the receipt of which is confirmed, addressed to the party hereto at the address set forth in the first paragraph of such Service Agreement (or such other address for a party as shall hereafter be specified by like notice). Either party hereto may from time to time change its notification address by giving the other party hereto prior written notice of the new address and the effective date thereof.
 17.  Relationship of the Parties: Neither any Service Agreement nor these General Terms and Conditions shall create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, or other relationship whatsoever between the parties hereto.

 18.  Successors and Assigns: Each Service Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns.
 19.  Force Majeure: Neither party hereto shall be deemed in default of any Service Agreement or these General Terms and Conditions to the extent that performance of its obligations (other than an obligation of payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, civil disturbance, terrorism, acts or omissions of suppliers and other third parties, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (each, a “Force Majeure Event”).
 20.  Modification or Waiver: The parties hereto may, by mutual agreement, amend any provision of any Service Agreement or these General Terms and Conditions, and any party hereto may grant consent or waive any right to which it is entitled under any Service Agreement or these General Terms and Conditions or any condition to its obligations under any Service Agreement or these General Terms and Conditions, provided that each such amendment, consent or waiver shall be in writing.
 21.  Governing Law: Each Service Agreement and these General Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New Jersey and the federal laws of the United States of America. The parties hereto consent to submit to the jurisdiction of the Courts of the State of New Jersey for any actions, suits or proceedings arising out of or relating to each any Service Agreement or these General Terms and Conditions.
 22.  Severability: In the event that any provision of any Service Agreement or these General Terms and Conditions, or any word, phrase, clause, sentence or other provision thereof, should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner so as to make such Service Agreement or these General Terms and Conditions as modified legal and enforceable to the fullest extent permitted under applicable laws.
 23.  Entire Agreement: These General Terms and Conditions and each Service Agreement and other attachments thereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties hereto with respect to such subject matter.
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